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NEW FOR TUESDAY: Judge Again Dismisses Wrongful Termination Suit Against Berlin

BERLIN — A visiting Worcester County Circuit Court judge last week dismissed for the second time a lawsuit filed by a former Berlin Fire Department supervisor against the town and its elected officials, alleging wrongful termination and calling into question the town’s authority to fire, suspend or discipline emergency services personnel. The plaintiff’s attorney said today he has filed an appeal with the state’s Court of Special Appeals.

In May, the town terminated EMS supervisor Norris Phillip Donohoe, Jr. after 23 years on the job when at least two EMS employees filed formal complaints that alleged workplace harassment and discrimination. In July, Donohoe filed a civil suit against the Mayor and Council and Town Administrator Tony Carson, seeking at least $200,000 and alleging the Berlin officials did not have the authority to terminate, or even discipline, him over allegations of harassment and discrimination. Instead, Donohoe, in his complaint, said that authority wrested with his immediate supervisors, the fire chief and the fire company president.

In early October, visiting Worcester County Circuit Court Judge David Mitchell dismissed Donohoe’s lawsuit without prejudice, but granted the plaintiff 21 days to amend the complaint. On Nov. 1, 2012, which was 21 days to the day of the initial dismissal in October, Donohoe’s attorney Robin Cockey filed an amended complaint, which followed the same basic facts as the original, but emphasized the termination aspect of the case rather than the disciplinary actions.

Last Wednesday, Mitchell again dismissed Donohoe’s lawsuit against the town of Berlin and its elected and appointed officials, pointing out the defendants were protected by the oft-evoked doctrine of sovereign immunity, which essentially insulates governmental bodies from most civil suits. Berlin Mayor Gee Williams applauded the judge’s decision to dismiss the case behind the doctrine of governmental immunity and pointed out Mitchell ruled there was no breach of contract.

“The court has once again disagreed and we are pleased the judge has dismissed the action and found the claims against the town did not have merit,” said Williams.

However, Cockey said “not so fast” on Tuesday, pointing out the judge’s ruling dismissed the suit under the blanket of governmental immunity and not on the merits of the case. In short, once the judge ruled the town and its elected officials were deemed to be protected by sovereign immunity, there was no reason to move forward with who was right or wrong in the case.

“Judge Mitchell ruled the town’s elected officials were immune under what we often refer to as sovereign immunity, but he didn’t rule on the legality and propriety of their actions,” he said. “The judge did not rule the town acted properly. We don’t reach that question because the doctrine of sovereign immunity essentially immunizes the town and its elected and appointed officials from the suit.”

In 2009, the town and its fire company entered an agreement under which paid EMS personnel were leased to Berlin as a means of making them eligible for state retirement and benefits. From the beginning, Berlin has asserted the “lease” arrangement puts the paid EMS personnel under the direction and supervision of the town and subject to the same personnel policies and employee handbook as other town employees.

When Donohoe was named in formal complaints filed by at least two EMS employees with allegations the nature of which have still not been made public, he was suspended by the town without pay for 30 days and was informed that upon return to work after the suspension, he would be demoted to EMS-paramedic. Donohoe then filed a formal grievance about the disciplinary action and was terminated by the town shortly thereafter, a termination he alleges was in retaliation for filing the grievance.

Essentially, the case boils down to who exactly has the authority to discipline, or in this case terminate, paid EMS personnel. In his lawsuit, Donohoe asserted the chain of command was first the fire chief, then the fire company president and lastly the Mayor and Council.

The allegations of harassment and discrimination in the EMS department of the Berlin Fire Company were cited as the primary reasons for the town’s decision in August to pull all funding for the entire fire company. However, the BFC has alleged the town’s decision to defund the fire company was based on control of scheduling and operations.

It’s important to note Donohoe’s lawsuit against the town of Berlin is mutually exclusive of the town’s ongoing dispute with the fire company, which is not a party in the case, but there is a rational nexus between the two issues. However, the BFC is merely an interested party on the sidelines in the suit.

There has been some conciliatory movement by both sides in ongoing dispute between the town and its fire company although no resolution has been reached. Perhaps buoyed by the recent dismissal of Donohoe’s unrelated lawsuit, Williams said the formal complaints filed against the former EMS supervisor could be the tip of the iceberg.

“We look forward to a time when we can resolve this dispute,” he said. “But it is our understanding that the legal ramifications of the allegations of workplace harassment at the Berlin Fire House have only just begun.”

Williams said the Mayor and Council in early January asked for a full accounting of the BFC’s financial status, but have not yet received any information in response to the request.

“In the meantime, we will simply allow the judicial process to follow its due course,” he said.

That “due course” will include an appeal of the Donohoe case. Cockey said this week he has already filed an appeal in the state’s Court of Special Appeals challenging Mitchell’s ruling at the Circuit Court level.

“The judge ruled the town was protected by immunity, but I respectfully disagree,” he said. “Mr. Donohoe has lost a 20-plus-year career and we’re not simply going to accept the position that this is not a rightable wrong.”

I seems that the judge evaded the question and instead posed his own question. The court should answer the question as to whether the town has any authority to terminate the employment of Donohoe. Was he a town employee?

How hard is this you receive Town Benefits Monies, health, retirement…you are a Town in employee. When you make arrangements like this you can not pick and choice when you want the organization to be your boss. Its a package deal. What is so hard. It sounds again like BFC is saying given me the money, but do not look at what I do with it….that as a tax payer is not favor. You want tax payers money then you report to us what you are doing with that money. Stay strong Town of Berlin….you are doing what the tax payers put you in office to do (which some tried to sunn you out) to protect us.

Legally in most states any form of reimbursement, means a person is “employed” by the ‘reimburser’. benefits is most assuredly a form of reimbursement. If the plaintiff was injured on his job, the township would have been responsible for his worker’s compensation coverage, etc. the larger question is how sovreign immunity can be applied to an employee – employer relationship even if it’s government based. essentially, the judge is stating any civil lawsuit brought against berlin that includes harasment of any kind by an employee should be dismissed….so if this stands, Secretaries, paralegals, women who work for men prepare to have your butts grabbed and the courts to through out your case.